Estates

You can but it is not advised.  Client’s often believe that administering an estate will be quite simple.  It often turns out to be far more complex than anticipated.  There are also ever changing legislative requirements to be met.  For instance, recent changes to the Trust Act require the estate to advertise prior to making disbursements to beneficiaries.  If this procedural step is not followed the executors may be personally liable to anyone who makes a claim against the Will at a later date.

Not necessarily.  A property owned by the testator may need to be transferred to the executors prior to being disbursed to the beneficiaries.

There are many instances where the executors can become personally liable to beneficiaries or other entities through the course of improper administration of an estate.  For example:

1. Not conducting a search to ensure a beneficiary is an undischarged bankrupt;

2. Not advertising as required before making disbursements;

3. Not ensuring tax is appropriately handled on any transfer to a beneficiary who is living overseas;

4. Not filing a final tax return to properly close out the Tax File Number of the deceased;

5. Distributing assets of the estate before the appropriate limitation periods without deeds in place with the beneficiaries.

This is a complex question and varies from estate to estate. Put simply your job entails:

1. Locating the will;

2. Assisting in arranging the funeral (make sure if there is a funeral plan in place it is put to good use);

3. Gathering in all the assets of the estate and making sure they are secured (make sure all insurances required are kept in place);

4. Ensuring all the debts are collected;

5. Obtaining probate;

6. Ensuring adequate records are kept reguarding the estate; and

5. Ensuring the assets are distributed in accordence with the will.

This is only a simple summary.

Please contact us for further details.

It is important to ensure that you bring as much information as possible with you at your initial appointment. This will give your lawyer a clear understanding of what is involved in administering the estate and will assist in enabling us to provide you with an accurate estimate of the costs involved.

• Below is a list of some important items to bring with you;

  • Original Will if you have it (or a copy of it if it is held elsewhere);
  • Death Certificate – if issued, if not, this can be provided later;
  • Bank account details and/or statements;
  • Details of any real property held by the deceased;
  • Nursing home details (if applicable);
  • Superannuation statements/information;
  • Details of any motor vehicles/vessels;
  • Pensions (Centrelink card/Veterans Affairs card/overseas pension information);
  • Medicare card;
  • Driver’s licence;
  • Life insurance policies;
  • Home and/or content insurance information;
  • Previous tax returns;
  • Membership cards;
  • Details of any personal property and effects, particularly items of value (eg. coin collections, stamp collections, jewellery etc);
  • Any expenses that require to be paid or reimbursed from the Estate (eg. funeral accounts).
  • Call our team at Mott & Associates, Solicitors on 3180 3580 to ease your journey

Call our team at Mott & Associates, Solicitors on 3180 3580 to ease your journey.

An executor is required to administer the estate and in doing so, must collect all assets and pay all liabilities. The estate is then distributed in accordance with the terms of the Will. But what happens if the deceased’s home is currently occupied by one of the beneficiaries and that beneficiary wants to retain the property?  

In this instance, the property can be transferred to that beneficiary in specie as part of their entitlement under the Will. However, if there is no specific bequest in the Will gifting the property to that beneficiary and the net estate assets are to be distributed between one or more other beneficiaries, then all beneficiaries will need to agree on the transfer. The executor would need to obtain a formal valuation of the property and all parties would need to agree to same. The agreed price would then be deducted from that beneficiary’s share of the estate or if the value of the property is greater than that beneficiary’s share, a payment would need to be made by the beneficiary to the estate for the difference. Such arrangement should be contained in a formal written agreement signed by the Executor and all beneficiaries.